Patrick Collins, Inc. v. Does 1-2590

Filing 67

ORDER by Judge Maria-Elena James denying 54 Motion to Dismiss; denying 54 Motion for Protective Order re: Doe Defendant at IP Address 96.35.156.120 (cdnS, COURT STAFF) (Filed on 12/1/2011)

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UNITED STATES DISTRICT COURT

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Northern District of California

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PATRICK COLLINS, INC.,

No. C 11-2766 MEJ

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Plaintiff,
v.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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DOES 1-2,590,

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ORDER DENYING WITHOUT
PREJUDICE MOTION TO QUASH (IP
ADDRESS 96.35.156.120)

Defendants.
_____________________________________/

Re: Docket No. 54
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On June 7, 2011, Plaintiff Patrick Collins, Inc. filed this lawsuit against 2,590 Doe

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Defendants, alleging that Defendants illegally reproduced and distributed a work subject to

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Plaintiff’s exclusive license, (“Real Female Orgasms 10”), using an internet peer-to-peer file sharing

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network known as BitTorrent, thereby violating the Copyright Act, 17 U.S.C. § 101-1322. Compl.

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¶¶ 6-15, Dkt. No. 1. On September 22, 2011, the Court granted Plaintiff’s Application for Leave to

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Take Limited Expedited Discovery. Dkt. No. 12. The Court permitted Plaintiff to serve subpoenas

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on Does 1-2,590’s Internet Service Providers (“ISPs”) by serving a Federal Rule of Civil Procedure

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45 subpoena that seeks information sufficient to identify the Doe Defendants, including the name,

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address, telephone number, and email address of Does 1-2,590. Id. at 11. Once the ISPs provided

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Does 1-2,590 with a copy of the subpoena, the Court permitted Does 1-2,590 30 days from the date

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of service to file any motions contesting the subpoena (including a motion to quash or modify the

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subpoena). Id.

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Now before the Court is a Motion to Quash, filed by a Doe Defendant, identified by

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IP Address 96.35.156.120, requesting that he be allowed to contest the subpoena without revealing

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his personal identifying information.1 Dkt. No. 54. In his motion, the Doe Defendant argues

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generally that joinder is improper in this case, that the Court lacks jurisdiction over him, and that

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venue is improper. As to joinder, the Court considered this issue at length in its previous order and

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found that Plaintiff presented a reasonable basis to argue that the Doe Defendants’ actions in this

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case may fall within the definition of “same transaction, occurrence, or series of transactions or

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occurrences” for purposes of joinder under Federal Rule of Civil Procedure 20(a). Dkt. No. 12 at 6-

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11. As the present motion presents the same generalized arguments addressed in its previous order,

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the Court finds it without merit.

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As to jurisdiction and venue, the Court finds that a motion based on these grounds is also

18, 2011); Call of the Wild Movie, LLC v. Smith, No. 10-0455, 2011 WL 1807416, at *9 (D.D.C.

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For the Northern District of California

premature. See, e.g., New Sensations, Inc. v. Does 1-1,745, 2011 WL 2837610, at *1 (N.D. Cal. Jul.

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UNITED STATES DISTRICT COURT

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May 12, 2011); Voltage Pictures, LLC v. Does 1–5,000, No. 10-0873, WL 1807438, at *8 (D.D.C.

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May 12, 2011). Rule 12(b)(2) permits defendants to move to dismiss for lack of personal

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jurisdiction. Although the Doe Defendant moves the Court to dismiss the action against him for lack

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of personal jurisdiction, he is not yet a defendant. If and when Plaintiff names him as a defendant,

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he will be able to raise this defense. Once Plaintiff amasses enough evidence and names the Does, it

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Under 28 U.S.C. § 636(b)(1)(A), a magistrate judge has jurisdiction to hear and decide
nondispositive matters without the consent of the parties. A motion to quash is normally considered
a non-dispositive matter, Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010), and
therefore, the undersigned has jurisdiction to rule on the Defendant’s motion(s) to the extent they
seek to quash Plaintiff’s subpoena. In addition, a magistrate judge has jurisdiction to consider the
question of whether joinder of unserved defendants is proper, including whether unserved
defendants should be severed and dismissed from the action, because defendants who have not been
served are not considered “parties” under 28 U.S.C. § 636(c). Neals v. Norwood, 59 F.3d 530, 532
(5th Cir. 1995) (holding that magistrate judge had jurisdiction to dismiss prison inmate’s action
under 42 U.S.C. § 1983 as frivolous without consent of defendants because defendants had not been
served yet and therefore were not parties); see also United States v. Real Property, 135 F.3d 1212,
1217 (9th Cir. 1998) (holding that magistrate judge had jurisdiction to enter default judgment in an
in rem forfeiture action even though property owner had not consented to it because 28 U.S.C. §
636(c)(1) only requires the consent of the parties and the property owner, having failed to comply
with the applicable filing requirements, was not a party). Here, Plaintiff has consented to magistrate
jurisdiction and the Doe Defendants have not yet been served. Therefore, the Court finds that it has
jurisdiction under 28 U.S.C. § 636(c) to decide the issues raised in the instant motion(s).
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will then have the burden to present a prima facie case supporting personal jurisdiction over

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defendants. See Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129

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(9th Cir. 2003). At that time, the Doe Defendant may present his affidavit asserting that he has

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never engaged in business with Plaintiff and that his activities with the forum state do not meet the

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requisite minimum contacts to establish personal jurisdiction. With evidence from both sides,

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jurisdiction will be decided on a full record. At this time, however, without any named defendants,

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the motion is not yet ripe. The motion is DENIED WITHOUT PREJUDICE and may be brought

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again once Plaintiff names the Doe Defendant as a defendant or when the Doe Defendant has

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identified himself.

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IT IS SO ORDERED.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Dated: December 1, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge

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